Broken Elections, Stolen Votes – Part Five (cont.)
In 2005, Indiana enacted what has been called the most restrictive voter identification law in America, which requires voters to provide current photo identification. Earlier this year the U.S. Supreme Court upheld the law, 6-3. The decision found “that not only is the risk of voter fraud real but that it could affect the outcome of a close election,” and that the inconvenience of obtaining a photo ID was not a “substantial burden on the right to vote” for most Indiana voters.
The rationale for the decision was far from clear, however. The justices wrote four separate opinions. In the lead opinion, liberal-leaning Justice John Paul Stevens found that the evidence presented was not strong enough to strike down the entire law. He touched on Indiana’s interest in modernizing its election system, but allowed that the voter ID law primarily addresses “in-person voter impersonation,” despite there being “no evidence of any such fraud actually occurring in Indiana at any time in its history.” He pointed instead to the historical record of voter fraud, citing Tammany Hall and a 2004 gubernatorial race in Washington State. Only two other members of the court signed on to Stevens’s opinion. A concurring opinion from three of the more conservative justices came to the same result as Stevens but dismissed the challenge with much stronger language.
The dissenting justices were also divided in their reasoning. All three were unimpressed with Indiana’s argument for the law, but Justice Stephen G. Breyer focused on contrasting Indiana’s law with similar but “significantly less restrictive” statutes in Florida and Georgia.
In 2008, the U.S. Supreme Court rejected a challenge to an Indiana law requring voters to present identification at the polls. (Supreme Court of the United States)Even legal scholars were unsure what to make of the decision. “The good news is that the justices are searching for ways to depoliticize election law cases,” Edward Foley, director of the election law program at Ohio State University’s law school, told the Bloomberg news service. “The less-encouraging sign, as evidenced by the 3-3-2-1 split, is that they aren’t quite there yet.”
The Supreme Court’s ambiguity has not stopped other states from following Indiana’s lead. Democrats in Georgia have filed a lawsuit against Georgia’s restrictive voter ID law, though they now face a harder battle. Governor Kathleen Sebelius of Kansas, a Democrat, vetoed a voter ID bill that quickly made it to her desk after the Indiana decision. And Missouri Republicans pushed unsuccessfully for new voter identification registration laws that would require proof of citizenship.
Indiana’s 2008 primary in May, conducted under the new law, did not produce widespread reports of disenfranchised voters, although one AP story about a dozen nuns who were turned away from the polls made the rounds on blogs and political talk shows. In late June, the League of Women Voters of Indiana filed a new lawsuit arguing that the ID law violates the state’s constitution.
To keep individual states from imposing what many regard as burdensome new “ballot security” rules and to prevent the wholesale purging of voter lists, a group of Democratic senators introduced the Ballot Integrity Act of 2007, which also addresses other problems that plagued the 2000 and 2004 elections.
Another provision bars state election officials from serving on the political campaigns of federal candidates, as Katherine Harris did as secretary of state in Florida in 2000 and Ken Blackwell did while holding the same office in Ohio in 2004. A similar provision in a House bill, sponsored by Representative Susan A. Davis, California Democrat, would ban the dual roles. “You can’t be both a player and a referee at the same time,” Davis told The New York Times. The ban has met with strong resistance from state officials.
Another reform bill represents a 180-degree retreat from the embrace of electronic voting after the 2000 election. Similar House and Senate bills would require voter-verified paper records subject to manual audits. That, sponsors say, would restore badly eroded confidence in the integrity of elections.
“I shudder to think what would happen with another election where millions of Americans don’t believe the results,” Representative Rush Holt, Democrat of New Jersey and a sponsor, told The Associated Press. But the requirement to junk millions of dollars of new electronic voting equipment and replace it with new systems has many worried. “I really am scared we’re waltzing off a cliff here,” said Representative Louise Slaughter, a New York Democrat.
Reformers like Holt hoped to have new legislation in place in time for next year’s voting, but that date has been pushed back until at least 2010. His legislation made it out of committee but has yet to come to a vote before the House. A Senate committee held hearings on the Ballot Integrity Act in 2007; no further action has been taken. In his day job as senator, Barack Obama, the presumptive 2008 Democratic nominee, is a sponsor of the Count Every Vote Act, which would amend the Help America Vote Act of 2002 to address issues like long lines at the polls, and is still in the hands of a Senate committee.
“My sense is there’s no way to get this thing in place by the election of 2008,” said Senator Dianne Feinstein, Democrat of California and co-sponsor of the Ballot Integrity Act to The New York Times. “Without adequate time, we could cause real problems in the election.”
Part One: A difficult problem to quantify
Part Two: “Swilling the Planters with Bumbo”
Part Three: The strange story of Florida’s 2000 election
Part Four: A second messy election: Ohio 2004
Part Five: What impedes election reform efforts
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Sarah Laskow contributed reporting to this story.
Susan Q. Stranahan is a freelance journalist. For 28 years, she was a staff writer at The Philadelphia Inquirer, where she covered environment, business, and the courts. Her stories were a major component of The Inquirer’s coverage of the Three Mile Island accident, which won the 1980 Pulitzer Prize for general local reporting. Stranahan is the author of Susquehanna, River of Dreams, published by the Johns Hopkins University Press, and has written for the Washington Post, the Los Angeles Times, the New York Times, Fortune, Mother Jones, and Time. She lives in Narberth, Pennsylvania.
SOURCES: Anthony York, “Eliminating Fraud – or Democrats?” Salon, December 8, 2000; Jimmy Carter, Election Reform Message to the Congress, The American Presidency Project, March 22, 1977; Dan Balz, “Carter-Baker Panel To Call for Voting Fixes,” The Washington Post, September 19, 2005; “Election Fraud: Detecting and Deterring Electoral Manipulation,”, The Brookings Institution, May 21, 2008; Craig Dosanto, e-mail to Margaret Sims, Election Assistance Commission, May 17, 2006; Kelly Holder, “Voting and Registration in the Election of November 2004,” U.S. Department of Commerce, Economics and Statistics Administration, U.S. Census Bureau, March 2006; “Policy Brief on Restrictions on Voter Registration Drives,” Brennan Center for Justice, New York University School of Law, September 2006; League of Women Voters of Florida v. Sue M. Cobb, United States District Court Southern District of Florida; League of Women Voters of Florida v. Cobb, Election Law, Ohio State University, July 7, 2008; League of Women Voters of Florida v. Browning, Election Law, Ohio State University, July 7, 2008; Dianne Wheatley-Giliotti, interview with Taylor Rausch, May 28, 2008; “Voting Rights Advocates Challenge Florida Registration Law in Federal Court,” Brennan Center for Justice, New York University School of Law, September 17, 2007; Crawford v. Marion County Election Board, Brennan Center for Justice, New York University School of Law, April 28, 2008; Linda Greenhouse, “Justices Agree To Hear Case About Voter ID Laws,” The New York Times, September 25, 2007; Crawford v. Marion County Election Board, Supreme Court of the United States, October 2007; Greg Stohr, “Voter-Identification Law Upheld by U.S. Supreme Court,” Bloomberg, April 28, 2008; Rhonda Cook, “Democrats Seek Voter ID Injunction,” The Atlanta Journal-Constitution, July 4, 2008; Jim Sullinger, “Sebelius Vetoes Voter ID Measure,” The Kansas City Star, May 20, 2008; Ian Urbina, “Missouri Legislature Ends Session With Voter ID Amendment Still on Agena,” The New York Times, May 17, 2008; Jo Mannies and Adam Jadhav, “Voter Photo IDs Back in Pictures,” St. Louis Post-Dispatch, April 29, 2008; Deborah Hastings, “Heavy Turnout in Some Ind. Counties Leads to Ballot Shortage,” The Associated Press, May 6, 2008; S.1487, Ballot Integrity Act of 2007, introduced May 24, 2007; H.R. 101, Federal Election Integrity Act of 2007, introduced January 4, 2007; Ian Urbina, “Voting Officials Face New Rules To Bar Conflicts,” The New York Times, August 1, 2007; “Senator Feinstein Introduces Comprehensive Reform Legislation To Ensure Accurate Counts in Federal Elections,” United States Senator Dianne Feinstein, California, May 25, 2007; Jim Abrams, “Controversy Arises Over Election Reform,” The Associated Press, September 6, 2007; Christopher Drew, “Overhaul Plan for Vote System Will Be Delayed,” The New York Times, July 20, 2007; H.R. 811, Voter Confidence and Increased Accessibility Act of 2007, introduced February 5, 2007; S. 804, Count Every Vote Act of 2005, introduced March 7, 2007.